BASIC STRUCTURE DOCTRINE: AN OVERVIEW

“Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties”

-Abraham Lincoln

With progress in time, the social, economic and political conditions of a country changes which mandates the amendment in the Constitution at every interval of time. This avoids difficulties for the people and ensures the progress of the nation. Article 368 of the Constitution provides for amendments of the Constitution in different ways- amendment by simple majority, amendment by special majority, amendment by special majority and ratification by States. The then Chief Justice of American Supreme Court John Marshall rightly said, “A Constitution is framed for ages to come, but its course cannot always be tranquil”.

The basic structure doctrine was developed by the Indian Judiciary in the late 20th century as a means of protecting the Constitution and to protect the limited degree of review the Apex Court had over the legislature. This doctrine basically propounds that there are certain basic features of the Constitution that cannot be changed or abrogated b any amendments made by the legislative body of the country i.e. the Parliament. The question whether the fundamental rights can be amended under Art.368 came for consideration before Supreme Court in Shakari Prasad case1. In this case, the validity of the Constitution (1st Amendment) Act, 1951 was challenged on the ground that it abridges the rights conferred by Part 3 and hence was void. The Supreme Court rejected the argument and held that power to amend including the Fundamental rights I contained in Art.368. A similar view was taken by the Court in Sajjan Singh case2. In Golak Nath case3, the validity of 17th Amendment was challenged. The Supreme Court ruled that the Parliament had no power to amend the Part 3 and overruled the decision in Shankar Prasad case and Sajjan Singh case. In 1971, the Parliament passed the 24th Constitution Amendment Act. It gave absolute power to the make any changes including the fundamental rights. In 1973, the Keshavnanda Bharti case4 the Supreme Court upheld the validity of the 24th Constitution Amendment Act b reviewing its decision in Golak Nath case. It held that the Parliament has power to amend any provision of the Constitution but the basic structure is to be maintained. The Supreme Court declared that Article 368 did not enable Parliament o alter the basic structure or framework of the Constitution and Parliament could not use its amending powers under Article 368 to ‘damage’, ‘destroy’, ‘ emasculate’, ‘ abrogate’, ‘change’ or ‘alter’ the basic structure or framework of the Constitution. It also known as the Fundamental rights case which is a consolidated name for the following cases- Raghunath Rao Ganpati Rao, N. H. Nawab Mohammed Iftekhar Ali Khan vs. UOI, Shethia Mining and Manufacturing Corporation Limited vs. UOI and Oriental Coal Co. Ltd. vs.UOI. This doctrine was reaffirmed in the case of Indira Gandhi vs. Raj Narain. In Minerva Mills case5 the Supreme Court struck down the Clause (4) and (5) of Article 368 inserted by 42nd Constitution Amendment Act on the ground that these destroyed the essential feature of basic structure of the Constitution.

This doctrine was further developed by adding judicial review ad balance between fundamental rights and directive principles of state policy as basic feature. In Kihoto Hollohan case6 (popularly known as defection case) free and fair election was added to basic feature. In Indira Swahney case7, “rule of law” was added to basic feature and in S. R. Bommai case8 the federal structure, unity and integrity, secularism, socialism, social justice and judicial review were reiterated as basic feature. In Waman Rao9, Sampath Kumar10 and Sambamurthy11 cases, the rules of law and judicial review was held as basic feature.

In 2007, the Supreme Court in a pivotal pronouncement in IR Coelho case12(also known as the IX schedule case) applied the doctrine by providing a strong linkage with fundamental right-

“The doctrine of basic structure contemplates that there are certain parts or aspects of the

Constitution including Article 15, Article 21 read with Article 14 and 19 which constitute the core values which if allowed to be abrogated would change completely the nature of the Constitution. Exclusion of fundamental rights would result in nullification of the basic structure doctrine, the object of which is to protect basic features of the Constitution as indicated by the synoptic view of the rights in Part III. Part III is amendable subject to basic structure doctrine. It is permissible for the Legislature to amend the Ninth Schedule and grant a law the protection in terms of Article 31B but subject to right of citizen to assail it on the enlarged judicial review concept. The Legislature cannot grant fictional immunities and exclude the examination of the Ninth Schedule law by the Court after the enunciation of the basic structure doctrine.”

In Ram Jethmalani case, powers of Supreme Court under Art.32 and in Madras Bar Association case, powers of High Courts under Art.226 and 227 was added to basic features.

The doctrine has helped Indian Constitution maintain its supremacy by saving its democracy. It is a major contribution to the theory of constitutionalism. Justice J.S. Verma in S.P.Gupta vs. Union of India13 exquisitely laid down that ‘The Constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate t and India needs today nothing more than a set of honest men who will have the interest of the country before them”.